ERIKA DEVORAK, v. WILLIAM J. DEVORAK, JR

Annotate this Case
NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-4325-16T2

ERIKA DEVORAK, n/k/a ERIKA
ATKINSON,

        Plaintiff-Appellant,

v.

WILLIAM J. DEVORAK, JR.,

     Defendant-Respondent.
_____________________________

              Submitted May 24, 2018 – Decided September 5, 2018

              Before Judges Haas and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Middlesex
              County, Docket No. FM-12-1861-10.

              Philip A. Greenberg, attorney for appellant.

              Respondent has not filed a brief.

PER CURIAM

        In this post-judgment dissolution matter, plaintiff Erika

Atkinson, formerly known as Erika Devorak and Erika Baldassaro,

appeals from the portions of the Family Part's November 4, 2016

order      establishing      "driving     responsibilities"       for    her       and
defendant     William   J.    Devorak,   Jr.     to   accommodate    defendant's

parenting time with their now nine-year-old daughter and denying

plaintiff's application for increased child support.                   She also

appeals from a May 12, 2017 order denying her motion for sanctions

under Rule 1:4-8.1      We affirm.

     On September 20, 2016, defendant filed a motion seeking an

order compelling "[t]he parties to share equally the driving

responsibilities regarding parenting time," reducing his child

support obligation "due to a change of circumstances[,]" and

requiring plaintiff to pay defendant counsel fees she owed pursuant

to a prior court order.          In response, plaintiff filed a cross-

motion, seeking monetary sanctions against defendant under Rule

1:4-8   for    having    to    oppose        defendant's   motion,     including

reasonable counsel fees and costs.             Plaintiff also sought an order

increasing defendant's child support obligation, requiring him "to

pay [eighty percent of] all expenses for [the parties'] child,

including but not limited to, all unreimbursed medical and dental

expenses, school related expenses, and extracurricular activities"


1
   The parties were married in 1999 and divorced on November 17,
2010. They have one child who was born in 2009. The parties'
November 17, 2010 property settlement agreement provided the
parties would have joint custody of their child, plaintiff would
have primary residential custody, and defendant would pay $183 in
child support, as well as "[seventy-nine percent] of the child
care costs . . . ."


                                         2                               A-4325-16T2
in addition to his other obligations.        Plaintiff also sought an

order compelling defendant to "be required to do all the traveling

in   connection     [with]    his   visitations   with   the    parties'

child . . . ."

     In a detailed written statement of reasons incorporated into

the November 4 order, Judge Daniel H. Brown reviewed the history

of the parties' residences from the time of the final judgment of

divorce, as well as earlier orders dealing with parenting time.

He determined that under the circumstances, "it is fair and

equitable   [for      them]    to   share   in    the    transportation

responsibility[,]" and granted defendant's motion for the parties

to   "equally     share   driving   responsibilities     for   parenting

time . . . ."     The judge ordered the parties to "agree [to] a

pickup and drop off location equidistant between their current

residences" of Ewing and Roseland.2


2
   At the time of divorce, both parties resided in Woodbridge and
they agreed that they would "share alternate weekends for parenting
time with the child. The defendant [would] pick her up after he
[was] done with work on Friday evening and bring her back on Sunday
by 8 [p.m.;]" and "defendant [would] be responsible for all
transportation for his parenting time, unless other arrangements
[were] mutually agreed upon by the parties."       Plaintiff later
moved to New York City, but on November 22, 2013, the parties
entered into a consent order where plaintiff agreed to relocate
to New Jersey, and defendant agreed to temporarily provide
transportation to and from his weekend parenting time until
plaintiff moved back to New Jersey. However, the consent order
did not address the parties' driving responsibilities upon


                                    3                            A-4325-16T2
     Addressing        plaintiff's     application             for    increased          child

support, Judge Brown concluded plaintiff failed to establish any

change in circumstances warranting a modification and observed

that, in any event, the expenses plaintiff sought for defendant

to pay were already included in the calculation of defendant's

child   support       obligation.       As       a     result,       the    judge       denied

plaintiff's motion without prejudice.

     Finally,         Judge   Brown     also           denied    without             prejudice

plaintiff's motion for sanctions and attorney's fees because,

contrary   to    plaintiff's     argument,           defendant's       motion         was   not

frivolous.      The judge found defendant established "a significant

change in circumstances warranting a modification of [a] prior

[o]rder    regarding     pick   up    and       drop    off[    and,       in    any    event,

p]laintiff      has    not    submitted         a    Certification              of    Services

addressing the factors" for consideration of a counsel fee award

as required under Rule 5:3-5(c).3


plaintiff's relocation to New Jersey. Thereafter, plaintiff moved
to Roseland, New Jersey and defendant moved to Ewing, New Jersey.
3
   According to a letter written by plaintiff's counsel to Judge
Brown on January 25, 2017, counsel attempted to file an appeal
from the November 4 order but it was rejected by our clerk's office
on January 17, 2017 because "[p]laintiff's request for sanctions
was denied 'without prejudice' . . . ." Counsel wrote to Judge
Brown to request the order be amended, but states that he never
received a response to his request. For that reason, according
to counsel plaintiff was compelled to file her April 10, 2017


                                            4                                          A-4325-16T2
      Judge Brown's May 12, 2017 order was entered in response to

plaintiff's April 10, 2017 motion, which again sought sanctions

and   counsel   fees.     In   her    motion,     plaintiff   contended   that

defendant's     earlier   motion     was    frivolous   and   plaintiff    was

entitled to counsel fees.       This time, however, plaintiff filed a

certification of services from her attorney. Judge Brown concluded

that plaintiff's motion was an untimely motion for reconsideration

under Rule 4:49-2 and even if it was timely, the motion failed to

meet the criteria for reconsideration or for an award of fees

because   defendant's     claims     were   not   frivolous   and   counsel's

"Certification of Services failed to address a myriad of factors

under [Rule] 5:3-5(c)."        Therefore, despite finding plaintiff's

motion to be "procedurally (being untimely) and substantively

flawed[,]" the judge "still consider[ed] plaintiff's application

. . . and . . . den[ied] the [m]otion based on its substantive

flaws (e.g.[,] no basis to find either party's prior application

was frivolous)."        After Judge Brown entered the May 12 order,

plaintiff filed her appeal from both orders on June 14, 2017.




motion that resulted in Judge Brown's May 12 order. We observe,
however, that the earlier appeal was docketed on January 17, 2017,
but voluntarily withdrawn at plaintiff's request, as memorialized
in our January 30, 2017 order. See Devorak v. Devorak, No. A-
1436-16 (App. Div. Jan. 30, 2017).

                                       5                              A-4325-16T2
     On appeal, plaintiff argues the November 4 order, which

modified the parties' property settlement agreement (PSA), was

entered in error "because matrimonial agreements are consensually

entered into [and] they should generally be honored."          Plaintiff

contends that when the parties entered into the PSA, both parties

were represented by counsel and the agreement was clear and

consensual.   Plaintiff alleges defendant received the benefit of

his bargain in that he did not have to pay alimony and paid

"modest" child support in return for doing all of the driving.

Finally, plaintiff asserts she has had a second child from her new

marriage and "is required, on a weekly basis, to do all the

transportation for the" parties' daughter.

     Plaintiff   also   argues   the   court   erred    in   denying   her

application for increased child support because her financial

circumstances changed, as she was required to relocate from New

York to New Jersey by court order, and her new husband has been

unable to sell the residence in Manhattan.         Plaintiff contends

there is also a change of circumstances because "a review of

[d]efendant's updated CIS and 2015 tax return prove[s] that [his]

present child support obligation is lower than that which would

be calculated under New Jersey's guidelines."          We disagree.

     At the outset, we conclude that plaintiff's appeal from the

November 4, 2016 order is untimely and we dismiss her appeal from

                                   6                              A-4325-16T2
that order on that basis.    See R. 2:4-1(a) (requiring "[a]ppeals

from final . . . orders . . . [to] be taken within [forty-five]

days of their entry").      Plaintiff's subsequent motion that she

characterized as one for sanctions and filed five months after the

entry of the November 4 order, did not toll the time for her filing

a timely appeal from that order.      Moreover, if as plaintiff's

counsel asserts there was an issue raised by our clerk as to the

order's finality, plaintiff was free to seek leave to appeal.      R.

2:4-1(c).   However, even if we were to consider plaintiff's

arguments, in light of the deferential standard we accord to

decisions made by Family Part judges, based upon their expertise

in family matters, see Cesare v. Cesare,  154 N.J. 394, 411-13

(1998), we would affirm substantially for the reasons expressed

by Judge Brown in his cogent statement of reasons, as we are

satisfied plaintiff's arguments "are without sufficient merit to

warrant discussion in a written opinion[.]"   R. 2:11-3(e)(1)(E).

     We reach the same conclusion as to plaintiff's arguments

regarding the May 12, 2017 order.      On appeal, plaintiff relies

upon Rule 1:4-8(b)(1), and argues that defendant's September 20,

2016 motion to reduce his support was frivolous "because his

failure to attach to his moving papers an updated CIS statement

or tax return as to [d]efendant's present financial situation made

. . . his application defective, on its face."   She also contends

                                  7                         A-4325-16T2
that "none of the case law or facts submitted by defense counsel

supported   [d]efendant's    application    to   increase   [p]laintiff's

driving   responsibilities    regarding    [d]efendant[']s        visitation

weekends[,]"   and   that   defendant's    motion   for   legal    fees   was

frivolous "because defense counsel did not and could not provide

any copies of [o]rders that listed the amount of attorney's fees

that [p]laintiff purportedly owed [d]efendant."           Plaintiff avers

she complied with Rule 1:4-8(b)(1) because she notified defendant

that, unless his motion was withdrawn within twenty-eight days,

plaintiff would seek sanctions.

     We conclude from our review that Judge Brown correctly denied

plaintiff's motion for sanctions and fees substantially for the

reasons he expressed in his order.          We only add that, even if

plaintiff had a viable and timely claim for sanctions under Rule

1:4-8, and defendant did not have "a reasonable good faith belief

in the merit of [his] action[,]" DeBrango v. Summit Bancorp,  328 N.J. Super. 219, 227 (App. Div. 2000) (citations omitted), she

failed to comply with the Rule's procedural requirements, which

include serving a detailed statement as to why a claim is viewed

as being frivolous, and filing a timely claim in a separate motion

no later than twenty days following the entry of the order denying

the alleged frivolous claim.     See R. 1:4-8(b)(1) and (2); see also



                                   8                                 A-4325-16T2
State v. Franklin Sav. Account No. 2067,  389 N.J. Super. 272, 281

(App. Div. 2006).

    Dismissed in part and affirmed in part.




                               9                          A-4325-16T2